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HomeMy WebLinkAboutAgenda - 03-02-2006-8bLCSHLF draft of February 21, 2006 Prepared by and return after recording to: Robert M. Jessup Jr. Sanford Holshouser LLP Post Office Box 2447 Raleigh, NC 27602 STATE OF ) NORTH CAROLINA ) LEASE ORANGE COUNTY THIS LEASE is dated as of April 1, 2006, and is entered into by and between ORANGE COUNTY, NORTH CAROLINA, as lessor (the "County"), and THE ORANGE COUNTY BOARD OF EDUCATION, as lessee (the "School Board"). WITNESSETH: The County and the School Board have previously agreed to cooperate in a plan far the acquisition, construction and financing of a ne~~T middle school for use by the School Board (the "Middle School"), as more particularly described on Exhibit A. The Middle School will lie on a site in Orange County, North Carolina, as described on Exhibit B {the "Site"). The County is the record owner of the Site. To pro~Tide financing for the Middle School, in accordance with the agreed- upon plan, the County has entered i11to an Installment Financing Contract (the "Financing Contract") u~•ith Orange County Public Facilities Company (the "Company"). To secure its obligations under the Financing Contract, the County has executed and delivered a Deed of Trust and Security Agreement (the "Deed of Trust") imposing a lien on the Site (and the improvements thereon) far the Company's benefit. The County proposes no«- to lease the Middle School and the Site to the ~3s6s~ School Board, and the School Board has determined to accept such lease. NOW THEREFORE, for and in consideration of the mutual promises contained in this Lease, the parties agree as follows: ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION All capitalized terms used in tlus Lease and not otherwise defined ha~Te the meanings assigned to them in the Financing Contract, unless the context clearly requires otherwise. All references to the Company include the Company's successors and assigns pursuant to the Financing Contract and the transactions contemplated by the Financing Contract. In addition, the follov~Ting terms have the meanings specified below, unless the context clearly requires otherwise: "Event of Default" means one or more events of default as defined in Section 11.1. "Lease" means this Lease, as it may be duly amended. "Lease Term" means the term of this Lease as determined pursuant to Article IV. "Lease Year" means, initially, from the Closing Date through June 30, 2006, and thereafter, means each twelve-month period commencing on July 1 and ending on the next June 3 0. "Leased Property" means the Site and all improvements on the Site, including the Middle Schaal. All references to articles or sections are references to articles or sections of this Lease, unless the context clearly indicates otherwise. ARTICLE II REPRESENTATIONS, COVENANTS AND WARRANTIES The County and the School Board each represents, covenants and warrants for the other's benefit as follows: (a) Neither the execution and delivery of this Lease, nor the fulfillment of or compliance with its terms and conditions, nor the consummation of the transactions contemplated by tlus Lease, results in a breach of the terms, conditions and provisions of any agreement or instrument to which either is nou~• a part~F or by ~vluch either is bound, or constitutes a default under any of the foregoing. (b) To the knowledge of each party, there is no litigation or other court or administrative proceeding pending or threatened against such party (or against any other person) affecting such party's rights to execute or deliver this Lease or to comply with its obligations under this Lease. Neither such party's execution and delivery of this Lease, nor its compliance ujith its obligations under this Lease, requires the approval of any regulatory body or any other entity the approval of ~vluch has not been obtained. ARTICLE III DEMISE; PRIORITY OF FINANCING CONTRACT 3.1. Demise. The County hereby leases the Leased Property to the School Board, and the School Board hereby leases the Leased Property from the County, in accordance with the pro~Tisions of this Lease, to ha~Te and to hold for the Lease Term, subject to the provisions of Sections 3.2. 3.2. Priority of Deed of Trust. NatFVithstanding anything in this Lease to the contrary, the School Board's rights to possession of the Leased PrapertyT, its rights to purchase the Leased Property under Section 5.2 and all its other rights under this Lease are subordinate to the rights of the Company (and its assigns) as beneficiary under the Deed of Trust. Any judicial sale of, or foreclosure an, the Leased Property pursuant to the Deed of Trust terminates all the School Board's rights under this Lease. ~3s6s~ ARTICLE IV LEASE TERM 4.1. Commencement. The Lease Tern1 commences on the date of the initial execution and delivery of this Lease, on or about April , 2Ut)6. 4.2. Termination. The Lease Term terminates upon the earliest of the following: (a) Judicial sale of or foreclosure on the Leased Property under the Financing Contract, as described in Section 3.2; (b) The occurrence of an Event of Default under this Lease and subsequent termination by the County pursuant to Section 11.2; (c) The date the School Board's purchase option under Section 5.2 expires; or (d) The termination of the Financing Contract, if the Financing Contract is terminated following an event of default by the County under the Financing Contract. Termination of the Lease Term terminates all the County's obligations under this Lease, and terminates the School Board's rights of possession under this Lease; but all other provisions of this Lease, including the receipt and disbursement of funds, continue until the Financing Contract is discharged as provided therein. ARTICLE V QUIET ENJOYMENT; PURCHASE OPTION 5.1. Quiet Enjoyment. The County covenants that the School Board will during the Lease Term peaceably and quietly have and hold and enjoy the Leased Property without suit, trouble or hindrance from the County, except as expressly required or permitted by this Lease. The County will not interfere with the School Board's quiet use and enjo~rment of the Leased Property during the Lease Term. The County ujill, at the School Board's request and the County's cost, join and cooperate fully in any legal action in which the School Board asserts its right to such possession and enjoyment, or which involves the imposition of any taxes or other governmental charges on or in connection with the Leased Property. In addition, the School Board ma~T at its ou~~n expense join in an~T legal action affecting its possession and enjoyment of the Leased Property and will be joined (to the extent legally possible, and at the School Board's expense) in any action affecting its liabilities under this Lease. The provisions of this Article are subject to rights to inspect the Leased Property granted to parties under the Financing Contract. 5.2. Purchase Option. The School Board has the option to purchase the Leased Property, u1 uThole but not in part, at any time during the 9~-day period beginning upon the date the Financing Contract terminates {other than a termination following an Event of Default under the Financing Contract or a termination in connection ~~Tith the County's refmancing its obligations under the Financing Contract; i11 either case, the School Board has no purchase option) upon payment to the County of a purchase option price of Ten Dollars. The County must notify the School Board of the beginning of the option period, and the option period will be deemed to begin upon the date the notice is deemed given pursuant to Section 12.1. The School Board must notify the County of its exercising of this option during the 90-day option period. Within 4~ days of the receipt of such notice from the School Board, the County will execute and deliver all necessary documents conveying to the School Board goad and marketable title to the Leased Property, subject only to (i} Permitted Encumbrances and (ii) any encumbrance or imperfection caused by or attributable to the School Board. The School Board's purchase option as described in this Section is subordinate to the rights of the beneficiary under the Deed of Trust, as described in Section 3.2. ARTICLE VI CONSIDERATION FOR LEASE 6.1. Use as Middle School; Assumption of Obligations. In partial ~3s6s~ consideration far its acquisition of rights to use the Leased Property during the Lease Term, the School Board agrees to use the Leased Property for public education in fulfillment of its obligation, shared by the County, to provide for educational services in the Coun~r. In addition, in consideration of its rights under this Lease, the School Board undertakes the obligations imposed on it under this Lease, including those imposed by Section 7.1. 6.2. Payments. In partial consideration for its acquisition of rights to use the Leased Property during the Lease Term and its option to purchase the Leased Property, the School Board agrees to pay to the County total rent for the Lease Term in the amount of Ten Dollars, payable in advance on the Closing Date, receipt of which the County hereby acknowledges. The County and the School Board acknowledge their understanding that although the County's financing of the Leased Property, and providing it to the School Board for use, is of substantial ~Talue to the School Board, anyT payment by the School Board of a market value rent would not be a financially meaningful transaction, because the School Board's funding is primarily provided through the County. ARTICLE VII SCHOOL BOARD'S ASSUMPTION OF COUNTY'S OBLIGATIONS 7.1 Assumption of Obligations. (a} The School Board assumes the County's obligations under [Financing Contract Sections 4.1 {care and use), 4.2 (utilities}, 4.S (compliance ti~Tith requirements), 4.C (regarding use and operation), 4.8 (payment of taxes and other governmental charges}, 4.9 (property damage insurance), 5.2 {prevention of liens), and 6.1 (regarding notice of damage, repair or replacement from Net Proceeds), as well as Deed of Trust Sections 3-2 {regarding maintenance and repair) and 3-3 {regarding compliance with environmental lauTs}.] The parties agree that the School Board may fulfill its requirements to maintain insurance through pooled risk and similar programs sponsored by or affiliated with the North Carolina School Boards Association, such as the North Carolina School Boards Association Insurance Trust.. (b) Notwithstanding the foregoing, the County retains its rights under [Section 6.3] of the Financing Contract to direct the use of Net Proceeds to prepayment of the County's obligations under the Financing Contract. 7.2. Transfer of Rights. In order to allow the School Board to carry out its obligations under Section 7.1, the County transfers its rights under [Section 4.7] of the Financing Contract (regarding maintenance, repairs and additions of and to the Leased Property). Nothing in this Section, however, may be construed as in any way assigning or delegating to the School Board any of the County's rights or responsibilities to make decisions regarding the School Board's capital and operating budgets. 7.3. Countv's Cooperation. (a) The County will cooperate fu11yT ~~Tith the School Board in filing any proof of loss or taking any other action under this Lease. Except as and to the extent provided in subsection (b), in no event will the County or the School Board vohintarily settle, or consent to the settlement of, any proceedi~ig arising out of any insurance claim with respect to the Leased Property without the other's ti~~-ritten consent. (b) In the case of a proceeding as to which amounts are to be paid out by the County or the School Board, either party may settle or consent to settlement without the other's consent if the amount of the settlement (i) is less than $10,000 or (ii) is to be paid entirely by insurance providers or other third parties. 7.4. Advances; Performance of Obligations. If the School Board fails to pay any amount required to be paid by it under this Lease, or fails to take any other action required of it under this Lease, the County may {but is under no obligation to) pay such amounts or perform such other obligations. The School Board agrees to reimburse the County for any such payments or for its costs incLUred in connection with performing such other obligations, together ~~Tith interest thereon at the annual rate of 8.00%. ARTICLE VIII DISCLAIMER OF WARRANTIES; OTHER COVENANTS 8.1. Disclaimer of Warranties. THE COUNTY MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR FITNESS FOR A ~3s6s~ PARTICULAR USE OF THE LEASED PROPERTY OR ANY PART THEREOF OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE LEASED PROPERTY OR ANY PART THEREOF. In no event ujill the County be liable for any direct or indirect, incidental, special or consequential damage in connection with or arising out of this Lease or the existence, fiinushing, functioiung or use by any of them of any item, product or service provided for herein. The School Board acknowledges that the County has not designed the Middle School or any other improvements on the Site (together, the "Improvements"), that the County has not supplied any plans or specifications with respect thereto and that the County (a} is not a manufacturer of, nor a dealer in, any of the component parts of the Improvements or similar facilities, (b) has not made any recommendation, given any advice nor taken any other action with respect to (1) the choice of any supplier, vendor or designer of, or any other contractor with respect to, the Improvements or any component part thereof or any property or rights relating thereto, or (2) any action taken ar to be taken with respect to the Improvements or any component part thereof or any property or rights relating thereto at any stage of the construction thereof, (c) has not at any time had physical possession of the Improvements or any component part thereof or made any inspection thereof or any property or rights relating thereto, and (d) has not made any ujarranty or other representation, express or implied, that the Improvements or any component part thereof or any property or rights relating thereto (1) uTill not result in or cause injLU-y or damage to persons or property, (2) have been or will be properly designed, or will accomplish the results which the School Board intends therefor, or (3) are safe in any manner or respect. 8.2. Further Assurances; Corrective Instruments. The School Board and the County agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Leased Propert~J hereby leased, or intended so to be, or for otherwise carrying out the intention of this Lease. 8.3. Covenant Against Financing Contract Defaults. The School Board covenants not to take or omit to take any action the taking ar omission of which would cause the County to be in default, technical or otherwise, under the Financing Contract.. In particular, the School Board covenants not to make any use of the Middle School that ujould cause the County's obligations to make Installment Payments under the Financing Contract to be "pri~Tate acti~Tity bonds" within the meaning of the Code, such as entering into any leases of any part of the Leased Property or entering into any contracts far the use, management or operation of any part of the Leased Property uTithout the County's consent. If the School Board takes or omit to take any such action, then, to the extent permitted by law, the School Board will proceed ~~Tith all due diligence to take such actions as may be necessary to cure such default. 8.4. Compliance «Tith Requirements. The School Board and the County must observe and comply promptly u~•ith all current and future orders of all courts hatTing jurisdiction o~Ter the Leased Property or any portion thereof {or be diligently and in good faith contesting such orders), and all current and future requirements of all insurance companies writing policies covering the Leased Property or any portion thereof. 8.5. Contents Insurance. The School Board acknowledges that it is solely responsible for insuring the personal property o~~~ned by the School Board that may at any time or from time to time be located at the Leased Property. 8.6. Permits and Other Authorizations. The School Board covenants and represents to the County that the School Board has obtained all permits, consents, approvals or authorizations of all governmental entities and regulatory bodies required as a condition to the School Board's entering into this Lease. The School Board further covenants and warrants that prior to the use of the Middle School for Middle School purposes, the School Board will obtain, and will thereafter maintain through the duration of this Lease, all further permits, consents, approval or authorizations of all governmental entities and regulatory bodies necessary to operate the Middle School. 8.7. En~~ironmental Warranties, Co~~enants and Indemnification. (a) The School Board warrants and represents to the County as follows: (i) The School Board has no kno~~rledge of,, and after reasonable inquiry no reason to believe (A) that any industrial use has been made of the Leased Property, (B) that the Leased Property has been used for the storage, treatment or disposal of chemicals or any wastes or materials that are classified by federal, State or local laws as hazardous or toxic substances, or {C) that any manufacturing, landfilling or chemical production has occurred ~3s6s~ on the Leased Property. (ii) The Leased Property is in compliance with all federal, State and local environmental lalvs and regulations. (iii) The School Board `Till mauztain, and ti~rill maintailz compliance ~~Tith, all licenses, permits and appro~-rals required with respect to any environmentally-regulated materials located on the Leased Property. (iv) The School Board will promptl~r notify the County of any change in the nature or extent of any hazardous materials, substances or wastes maintanzed on, in or under the Leased Property or used in connection therewith, and ~~jill promptly send to the County copies of any citations, orders, notices or other material governmental or other communication received with respect to any other hazardous materials, substances, wastes or other environmentally regulated substances affecting the Leased Property. (b) To the extent permitted by lour, the School Board shall indemnify and hold the County from and against (i} any and all damages, penalties, fines, claims, liens, suits, liabilities, costs {inchding clean up costs), judgments and expenses (including attorneys', consultants' or experts' fees and expenses} of ever~r kind and nature suffered by or asserted against the County as a direct or indirect result of (A) an~j representation or uTarranty nz subsection (a} above beiiZg false or untrue in any material respect, or (B) any material noncompliance with any federal, State and local environmental lours and regulations uTith respect to the Leased Property, or (ii} any requirement under any law, regulation or ordinance, local, State or federal, uThich requires the elimination or remo~Tal of any hazardous materials, substances, wastes or other enviroiunentally regulated substances b}r the County or any transferee or assignee of the County. (c} The School Board's obligations under this Section will continue in full effect notwithstandil~g any termination of this Lease. ARTICLE IX TITLE TO LEASED PROPERTY Except far personal property purchased by the School Board at its o~~~n expense, title to the Leased Property and any and all additions and modifications to or replacements of any portion of the Leased Property will be held in the County's name, subject only to Permitted Encumbrances, until foreclosed upon or conveyed as pro~Tided in the Financing Contract or the Financing Contract, notwithstanding {a) the occurrence of one or more e~Tents of default as defined in Financing Contract [Section 10.1 ] ; (b} the occurrence of any event of damage, destriction, condemnation or constriction or title defect; or (c} the County's violation of any pro~rision of this Lease. The Schaal Board has no right, title or interest in the Leased Property or any additions and modifications to or replacements of any portion of the Leased Property, except as expressly set forth in this Lease. ARTICLE ~ SUBLEASING, ASSIGNMENT, AND INDEMNIFICATION 10.1. School Board's Subleasing and Assignment. (a) Except as provided in subsection (b), the School Board may not sublease the Leased Property, in lvhole or in part, enter into other agreements for the use of any part of the Leased Property or assign any of its rights or obligations under this Lease, without the County's prior written consent. {b) The School Board may enter into agreements for the use of portions of the Leased Property with state and local (but not federal) government entities, and may alla~v for the occasional use of portions of the Leased Property by non- govertunent entities, in each case ~~Tithaut the necessity of obtaining the County's prior consent. The School Board must make an annual report to the County of all such agreements sa that the County may monitor such use to protect its rights to the Leased Property and to assure compliance with the County's covenants under the Financing Agreement. The School Board must make this report by September 15 of each year far the Schaal Board's then most recently-completed fiscal year. (c) The School Board's obligations under Section $.3 take priority over the School Board's rights under this Section 10.1. The School Board's allowing use of the Leased Property pursuant to this Section 10.1 will not constitute a <<Tialation of the School Board's obligations under Section 6.1 ar otherwise to use the Leased Property far public education purposes. ~3s6s~ 10.2. Indemnification. To the extent permitted by law, the School Board will indemnify and save the County harmless against and from all claims, by or on behalf of anSj person, firm, corporation or other legal entity, arising from the operation or management of the Leased Property during the Lease Term, including any arising from: (a) an}r condition of the Leased Property; or (b) anyr negligent act of the School Board or of any of its agents, contractors or employees or an5~~ violation of law by the School Board or breach of any covenant or warranty by the School Board under this Lease. The School Board v~Till, upon notice from the County, defend or pay the cost of defending the County in any action or proceeding brought in connection ~~Tith any claims arising out of circumstances described in (a) or (b) abotTe. ARTICLE ~I EVENTS OF DEFAULT 11.1. Events of Default. The following will be "Events of Default" under this Lease and the term "Default" shall mean, uThenever it is used in this Lease, any one or more of the following events: (a) The School Board's failure to observe and perform any co~Tenant, condition or agreement on its part to be observed or performed for a period of 30 days after written notice specifying such failure and requesting that it be remedied has been given to the School Board by the County or the Company, unless the County and the Company agree in ~~~riting to an extension of such time prior to its expiration. (b) The dissolution or liquidation of the School Board or the voluntary initiation by the School Board of any proceeding under any federal or State law relating to bankruptcy, insolvency, arrangement, reorganization, readjustment of debt or any other form of debtor relief, or the initiation against the School Board of any such proceeding wluch remains undismissed for sixty days, or the entry by the School Board into an agreement of composition ~.•ith creditors or the School Board's failure generally to pay its debts as they become due. 11.2. Remedies on Default. Whenever an}j Event of Default is continuing, the County may take one or any combination of the following remedial steps: (a} Terminate this Lease, evict the School Board from the Leased Property or any portion thereof and re-lease the Leased Property or any portion thereof; (b) Have reasonable access to and inspect, examine and make copies of the School Board's books and records and accounts during the School Board's regular business hours, if reasonably necessary in the County's opinion; or (c} Take whatever action at law or in equity may appear necessary or desirable to collect the amounts then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the School Board under this Lease. 11.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Count~j is intended to be exclusive, and every such remedy will be cumulative and will be in addition to every other remedy given under this Lease and every remedy now or hereafter existing at la~v or in equity. Na delay or omission to exercise any right or power accniing upon any default will impair any such right or power, and any such right and pov~Ter may be exercised from time to time and as often as may be deemed expedient. In order to entitle the County to exercise any remedy reserved in this Article XI, it u~•ill not be necessary to give any notice, other than such notice as may be required in this Article XI. 1L4. Waivers. If either party should breach any agreement contained in this Lease and thereafter the other party waives the breach, such waiver will be limited to the particular breach so waived and will not be deemed to waive any other breach under this Lease. The County, however, has no right to waive any Event of Default without the Company's consent. A waiver of an event of default under the Financing Contract constitutes a waiver of any corresponding Event of Default under this Lease; provided that no such waiver will extend to or affect any subsequent or other Event of Default under this Lease or otherwise impair any right consequent thereon. 11.5. Agreement To Pay Attorneys' Fees and Expenses. If the School Board defaults under any Lease provision and the County or the Company employs attorneys or incurs other expenses for the collection of any payments due under this Lease, or the enforcement of performance or observance of any obligation or agreement on the part of the defaulting party contained in this Lease, the School Board agrees that, to the extent permitted by law, it ujill pay on demand therefor to ~3s6s~ the County or the Company, as the case may be, the fees of such attomeys and such other expenses so incurred by the non defaulting party, to the extent that such attomeys' fees and expenses may be determined to be reasonable by a court of competent jurisdiction. 11.6. Waiver of Appraisement, Valuation, Stay, Extension, and Redemption Laws. The School Board and the County agree, to the extent permitted by law, that upon a termination of the Lease Term by reason of an Event of Default, neither the School Board nor the County nor any one claiming through or under either of them will set up, claim or seek to take advantage of any appraisement, ~Taluation, stay, extension or redemption laws now or hereafter in force in order to prevent or hinder the enforcement of the Financing Contract or of any remedy provided under this Lease or under the Financing Contract; and the School Board and the County, for themselves and all who may at any time claim through or under either of them, each hereby waives, to the full extent that it may lawfully do so, the benefit of such laws. ARTICLE XII NIISCELLANEOUS 12.1. Notices. All notices, certificates or other communications under this Lease will be sufficiently given and u~•ill be deemed given when delivered or mailed by registered mail, postage prepaid, addressed as follows: (a) If iltended for the County, to Orange County Manager, Regarding: Notice under 2000 Middle School Financing Lease, Post Office Sox $181, Hillsborough, North Carolina 27278; and, (b) If intended for the School Board, to Superintendent, The Orange County Board of Education, Regarding: Notice under 2006 Middle School Financing Lease, 200 East King Street, Hillsborough, North Carolina 2727$. A copy of any notice under this Lease must also be sent simultaneously to the Trustee at the follov~-ing address: The Bank of New York, Attention: Corporate Trust Department, Regarding: Notice under Orange County 2006 Financing Lease, 10161 Centurion Parkway, Jacksonville, FL 32256. 12.2. Binding Effect. This Lease will inure to the benefit of and shall be binding upon the School Board and the County, and their respective successors and assigns, subject, however, to the limitations contained i11 Article X. 12.3. Amendments, Changes and Modifications. This Lease may not be amended without the Company's ~~~ritten consent. 12.4. Net Lease. This Lease will be deemed and construed to be a "net lease," and the School Board will pay absolutely net during the Lease Term all other payments required under this Lease, free of any deductions, and lvithout abatement. or set-off. 12.5. Payments Due on Holidays. If the date for making any payment or the last day for performance of any act or the exercising of any right, as provided in this Lease, shall not be a Business Day, such payment must be made or act performed or right exercised on the next preceding day that is a Business Day. 12.6. Severability. If any provision of this Lease, other than the requirement. of the County to provide quiet enjoyment of the Leased Property, is held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision hereof. 12.7. Execution in Counterparts. This Lease may be simultaneously executed in several counterparts, each of which will be an original and all of which will constitute but one and the same instrument. 12.8. Applicable La~~~. The parties intend that this Lease will be govenled by and construed in accordance with State law. 12.9. School Board and County Representatives. Whenever under the provisions hereof the approval of the School Board or the County is required to take some action at the request of the other, unless otherwise prop-Tided, such approval or such request must be given (a} for the County by the County Representative, and (b} for the School Board by its Superintendent, its Chairman or anyone designated in ~~riting by such Chairman or Superintendent to the County Manager to perform any act (or any specified act} under this Lease, and ill any such case the School Board and the County will be authorized to act on any such approval or request. ~3s6s~ 12.1Q. Memorandum of Lease. At the request of either party, the County and the School Board will at any time execute a memorandum of this Lease legally sufficient to comply with the relevant provisions of the North Carolina General Statutes. 12.11. Third-Party Beneficiary. The Company and its successors or assigns as beneficiary under the Deed of Trust are intended by the County and the School Board to be third-party beneficiaries of this Lease. ~Th~ remainder of this page ~aa.s been left blank interationally.J IN WITNESS WHEREOF, the parties hereto ha~Te caused tlus Lease be executed in their corporate names by their duly authorized officers, all as of the date first above u,~ritten. [SEAL] ORANGE COUNTY, ATTEST: NORTH CAROLINA By: Donna S. Baker Bamj Jacobs J Clerk, Baard of Ghair, Board of Commissioners Commissioners [SEAL] THE ORANGE COUNTY BOARD OF ATTEST: EDUCATION By: Shirley Carraway Randy Copeland Secretary Chair This instrument has been preaudited in the manner required by The Local Government Budget and Fiscal Control Act. Kenneth T. Chaviaus Finance Officer Orange County, North Carolina This instrument has been preaudited in the maruzer required by the Middle School Budget and Fiscal Control Act Pat Harris Finance Officer, The Orange County Baard of Education [Lease dated as of April 1, 200C] STATE OF NORTH CAROLINA; ORANGE COUNTY I, , a Notary Public of said State and County, do hereby certify that Barry Jacobs and Donna S. Baker personally came before me this day and acknowledged that they are, respectively, the Chair and the Clerk of the Board of County Commissioners of Orange County, North Carolina, and that by authority duly given and as the act of such County, the foregoing instrument ~~Jas signed in the County's name by the Chair, sealed uTith its corporate seal and attested by such Clerk. Witness my hand and official seal this day of Apri12006. Notary Public M -commission ex Tres: STATE OF NORTH CAROLINA; ORANGE COUNTY I, , a Notary Public of said State and County, do hereby certify that Shirley Carraway, with whom I am personally acquainted, who, being by me duly sujorn, says that he is the Secretary of The Orange County Board of Education and that Randy Copeland is the Chair of such Board of Education, the Board described in and which executed the foregoing instrument; that she knou~•s the common seal of said Board; that the seal affixed to the foregoing instrument is said common seal, and the name of the Board was subscribed thereto by the said Chair, and that said Chair and Secretary subscribed their names thereto, and said common seal was affixed, all by order of the Board and that the said instrument is the act and deed of said Board. Witness my hand and official seal this day of April, 2006. Notar~r Public My commission ex ices: EXHIBIT A MIDDLE SCHOOL DESCRIPTION [To come] EXHIBIT B SITE DESCRIPTION [To come]